‘Secret’ Airline Regulations Harm Freedom

Last week the 9th U.S Circuit Court of Appeals struck a grievous blow against the 4th Amendment and government secrecy. After a secret meeting to review secret evidence, a three-judge panel led by Clinton appointee Robert Paez upheld, without trial, a secret regulation that compels commercial airlines to demand photo ID from anyone attempting to fly within the United States.

The lawsuit was initiated by information-technology pioneer John Gilmore, after he was refused permission to board a Southwest Airlines flight on July 4, 2002, for refusing to show photo identification. Airline employees told Gilmore the ID requirement was mandated by a secret regulation issued by the Federal Aviation Administration. Gilmore’s lawsuit was immediately sent to the Appeals Court by a U.S. District Court, reasoning that only a higher court would have to jurisdiction to review a secret directive.

At the heart of Gilmore’s suit was the claim that the secret requirement violates his right to travel, peaceably assemble, and be free from unwarranted search and seizure. Gilmore does not have a state-issued driver’s license and finds it repugnant to show his passport to travel within his own country — especially if he’s been thoroughly searched for weapons. Gilmore initiated the lawsuit after refusing to show identification to board a Southwest flight to Washington, D.C., on July 4, 2002. Gilmore said he was undertaking the flight to petition the federal government, a constitutionally-guaranteed right.

After being refused service by Southwest, Gilmore attempted to board a United Airlines flight at another airport. There, United told Gilmore the policy was set out in secret government Security Directives which, according to the decision, are "revised frequently, as often as weekly; were transmitted orally; and differed according to airport." That might explain the seeming lack of rhyme or reason when one flies these days — one airport lets you walk through with your shoes on, the next threatens you with "wanding" if you refuse to de-shoe.

That secrecy was also a hallmark of the 9th Circuit’s proceedings. The three-judge panel reviewed the FAA’s directive in secret, refused the plaintiff access to the document, and made its decision without going to the trouble of having a real trial.

Americans concerned with privacy and the liberty to travel without Stasi-like demands for your identification papers have been following the case with concern. Gilmore was supported by the Electronic Frontier Foundation and the Center for Democracy and Technology, both of which filed amicus briefs in the case.

Outside of court, Gilmore has lain out the practical, security-based objections to the ID requirement as well as constitutional ones. He is fond of citing a paper from the Massachusetts Institute of Technology that shows random searches provide better air security than identification checks. Gilmore’s website publicizing the case asks, "If a 19 year-old college student can get a fake ID to drink, why couldn’t a bad person get one, too?"

Another question: What exactly does the government do with the information from the demanded identification papers? Right now, it runs the name against "watch lists" of alleged terror suspects. The Transportation Security Agency revealed in December that 30,000 names are on the list. Each name represents one or more people denied the right to private air travel by the state. Thousands of people named "David Nelson" have to explain themselves every time they go to an airport.

Homeland Security is working on another way to ban selected Americans from flying, a data-mining system called Secure Flight. Last August, Congress rejected efforts by Homeland Secretary Michael Chertoff to launch Secure Flight before serious questions about it were resolved. Under TSA’s vision of Secure Flight, a proprietary computer algorithm would run passenger names through credit-check, criminal, and other commercial databases, and then determine whether to allow or bar Americans from boarding a commercial flight. To date, TSA has spent $200 million trying to develop software for Secure Flight, but still hasn’t developed reliable software. The Senate Commerce Committee is holding an oversight hearing Secure Flight today, February 9.

Whether it’s the current watch-list imbroglio or the questionable Secure Flight screening system, these centrally planned initiatives do more than just prima facie violate constitutional rights. They leave the travel industry unable to innovate and discover the best ways to protect the security of its customers and simultaneously serve customer privacy preferences.

Air passengers can and should decide for themselves where along the continuum of security options — from full background checks to fully secured cockpits; from strip searches to concealed-carry — they’re most comfortable traveling. As the 9th Circuit’s shameful secret decision shows, abandoning freedom and human ingenuity for big-government solutions is a slippery slope to Soviet-style secrecy.